Decision Date: 10/31/95 Archive Date:
10/31/95
DOCKET NO. 93-27 040 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for a back condition.
2. Entitlement to service connection for hearing loss.
REPRESENTATION
Appellant represented by: John M. Williamson, III,
Attorney at Law
ATTORNEY FOR THE BOARD
K. E. Harrison, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1951 to
October 1953. This matter comes before the Board of
Veterans Appeals (Board) on appeal from a March 1992 rating
decision by the RO.
The veteran was schedule and failed to appear for 3 hearings
before the Travel Section of the Board. The most recent
Travel Board hearing was scheduled for November 3, 1993. A
letter from the veteran, dated November 6, 1993, and
addressed to the RO, was received at the RO on November 10,
1993. In this letter, the veteran requested an extension
until he retired at the end of the year. The veteran's
attorney submitted a letter which was dated November 12,
1993, and also addressed to the RO. This letter was
received at the RO on November 15, 1993, and it noted that
the veteran was scheduled for a hearing before the Travel
Section of the Board on November 3, 1993 and inquired
whether the veteran's request for a continuance was granted.
The provisions of 38 C.F.R. § 20.704(d) (1994) which
pertains to failure of the veteran to appear for a scheduled
Travel Board hearing states:
If an appellant (or when a hearing only for oral argument by
a representative has been authorized, the representative)
fails to appear for a scheduled Travel Board hearing and a
request for postponement has not been received and granted,
the case will be processed as though the request for a
hearing had been withdrawn. No further request for a
hearing will be granted in the same appeal unless such
failure to appear was with good cause and the cause for the
failure to appear arose under such circumstances that a
timely request for postponement could not have been
submitted prior to the scheduled hearing date. A motion for
a new hearing date following a failure to appear for a
schedule Travel Board hearing must be in writing, must be
filed within
15 days of the originally scheduled hearing date, and must
explain why the appellant failed to appear for the hearing
and why a timely request for a new hearing date could not
have been submitted. Such motions must be filed with the
Travel Board Secretary of the Board of Veteran's Appeals.
38 C.F.R. § 20.704(d) (1994)
In light of the veteran's failure to comply with the
provision of 38 C.F.R. § 20.704, the Board will proceed as
though the hearing request had been withdraw.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he injured his back while helping
to shift the trails on a 155 howitzer in service. In
addition, he claims that an October 1970 car accident
aggravated the already existing back disability. The
veteran further contends that he has a hearing loss due to
his exposure to acoustic trauma in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has failed to meet
his initial burden of submitting evidence sufficient to
justify a belief in the mind of a fair and impartial
individual that he has submitted well-grounded claims of
service connection for a back condition and hearing loss.
FINDINGS OF FACT
1. No medical evidence has been submitted to show that the
veteran has a back condition due to disease or injury in
service.
2. No medical evidence has been submitted to show that the
veteran has hearing loss due to disease or injury in
service.
CONCLUSION OF LAW
1. The veteran has not presented a well-grounded claim of
service connection for a back condition. 38 U.S.C.A. §§
1110, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.303 (1994).
2. The veteran has not presented a well-grounded claim of
service connection for bilateral defective hearing. 38
U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991); 38 C.F.R. §
3.303, 3.385 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Back Condition
Background. The service medical records are negative for
any complaints or diagnosis of a back condition. The
veteran's entrance and discharge examinations revealed that
the veteran had a normal spine. In addition, July 1955 and
September 1956 army reserve promotion examinations also
revealed a normal spine.
A November 13, 1970 report by E. K. Wallace, Jr., M.D.
revealed that in October 1970 the veteran was involved in an
automobile accident. The report indicated that following
the automobile accident the veteran noted sharp back pains
along the belt line. The report also indicated that the
veteran complained of low back pain after periods of long
sitting and reported that his back hurt with leg movement
and on bending forward. Dr. Wallace noted that the veteran
moved about with great difficulty because of pain in his
back. The November 1970 report as well as a hospital
discharge report covering the period of November 3, 1970 to
November 14, 1970 reported that physical examination of the
veteran's back revealed that the lumbar spine was flat with
a list of the spine to the right. Dr. Wallace reported that
the veteran had tenderness at the L4-5 interspinous space of
a severe degree and also to a lesser degree, over the right
subgaleal region. Straight leg raising was positive on the
right at 30 degrees with a positive bow string and Lasegue
sign, both producing pain. Straight leg raising was present
on the left to 45 degrees. X-ray studies of the dorsolumbar
spine revealed hypertrophic arthritis involving the bodies
of L3-4 and 5 and a marked narrowing of the lumbosacral disc
was seen with sclerosis of the adjacent borders of the
vertebral bodies. Dr. Wallace impression on November 13,
1970 was acute L4-5 disc protrusion with L5 root pressure,
right. Dr. Wallace impression on the hospital discharge
summary was acute lumbosacral sprain.
A letter dated November 19, 1970, by Gerald J. Quinn, M.D.
revealed that the veteran was seen with complaints of low
back and right leg pain due to an automobile accident. It
was reported that a neurological examination failed to
reveal evidence of central neural deficit save for nerve
root compression referable to the right lower extremity.
Outpatient treatment reports from October 1970 to January
1972 revealed that the veteran was treated for back pain due
to an automobile accident. X-ray studies during this period
of time showed morbid narrowing of the lumbar spine. It was
noted that the veteran wore a brace and was taking Motrin.
Analysis. The law provides that service connection may be
granted for disability which was incurred in or aggravated
by active military service. 38 U.S.C.A. §§ 1110 (wartime),
1131 (peacetime) (West 1991). However, the preliminary
requirement is that the applicant submit evidence which is
sufficient to justify a belief in the mind of a fair and
impartial individual that he has presented a well-grounded
claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court of
Veterans Appeals (the Court) has defined a well-grounded
claim as "a plausible claim, one which is meritorious on its
own or capable of substantiation." Such a claim need not be
conclusive but only possible to satisfy the initial burden
of 38 U.S.C.A. § 5107(a) (West 1991). Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The Board finds that the veteran's claim of service
connection for a back condition is not well grounded under
the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Service
medical records are negative for any treatment or diagnosis
of a back condition. In addition, the veteran has not
submitted any medical evidence demonstrating that he has a
back condition which is attributable to disease or injury in
service. The veteran claims that he developed a back
condition while shifting a Howitzer in service and that the
October 1970 car accident aggravated his claimed service
related back condition. However, where the issue involves
questions of medical causation or a medical diagnosis,
competent medical evidence is required. The veteran's lay
assertion of medical causation cannot constitute evidence to
render a claim well grounded because he is not competent to
offer such medical opinions Grottveit v. Brown, 5 Vet.App.
91 (1993). Since the claim is not well grounded, the Board
lacks jurisdiction to consider the appeal on the merits.
Boeck v. Brown, 6 Vet.App. 14 (1994).
II. Bilateral Hearing Loss
Background. The veteran contends that he has a bilateral
hearing loss as a result of being involved with firing 155
mm Howitzers. The service medical records are negative for
any complaints or diagnosis of a hearing loss. The
veteran's entrance and discharge examinations are negative
for any diagnosis pertaining to a hearing loss. In
addition, the veteran's July 1955 and September 1956 army
reserve promotion examinations also are negative for any
diagnosis referable to a hearing loss. All service
examinations showed that the veteran had bilateral hearing
of 15/15. Furthermore, the veteran's post service medical
record are negative for showing any hearing loss.
Analysis. The Board finds that the veteran's claim of
service connection for a hearing loss is not well grounded
under the previously discussed meaning of 38 U.S.C.A. §
5107(a) (West 1991). Service medical records are negative
for any findings referable to a hearing loss. In addition,
the veteran has failed to submit any competent medical
evidence showing that he has defective hearing.
Furthermore, he has not submitted any evidence demonstrating
that he has received treatment or has been diagnosed as
having a hearing disability which can be attributable to
disease or injury in service. The veteran claims that he
has a hearing disability due to his exposure to acoustic
trauma in service. However, where the issue involves a
medical determination, medical evidence is required.
Therefore, the veteran's lay assertion of medical causation
and diagnosis cannot constitute evidence to render his claim
well grounded because he is not competent to offer such
medical opinions. Grottveit v. Brown, 5 Vet.App. 91
(1993). As the claim of service connection for a hearing
loss is not well grounded, the Board lacks jurisdiction to
decide the appeal on the merits. Boeck v. Brown, 6 Vet.
App. 14 (1994).
ORDER
As a well-grounded claim of service connection for a back
condition has not been presented, the appeal is dismissed.
As a well-grounded claim of service connection for a hearing
loss has not been presented, the appeal is dismissed.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing
and the copy of this decision that you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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